By Jeff Lenard
As reported in the NACS Daily and other channels on July 13, 2012, the proposed settleÂment of longstanding antiÂtrust litigation between merchants and the credit card industry was rejected by NACS, a class plaintiff in the lawsuit.
Because the proposed settlement does not introduce competition and transparency into the broken credit card swipe fee market, the NACS Board of Directors, comprised of more than two-dozen retailers, rejected the proÂposed settlement agreement.
"Not only does the proposed settlement fail to introduce comÂpetition and transparency into a clearly broken market, it actualÂly provides Visa and MasterCard with the tools to continue to shield swipe fees from market forces," said NACS Chairman Tom Robinson, president of Santa Clara, Calif.-based Robinson Oil Corp. "This proposed settlement allows the card companies to continue to dictate the prices banks charge and the rules that constrain the market including for emerging payment methods, particularly mobile payments. Consumers and merchants ultimately will pay more as a result of this agreeÂment â€" without any relief in sight."
The proposed settlement is the largÂest antitrust settlement in U.S. history, but it amounts to less than two monthsâ€™ worth of swipe fees, based on the esÂtimated $50 billion in swipe fees colÂlected by the credit card companies on an annual basis. Worse, there are no fundamental market changes that would constrain Visa and MasterCard from continuing to raise rates to a point where the net effect is to make merÂchants pay for their own settlement â€" and then some.
As a class plaintiff in the litigation, NACS sought a trial to establish that the anticompetitive practices engaged in by the credit card industry are ilÂlegal. NACS also pushed to end the practices engaged in by the credit card companies that donâ€™t allow for market competition.
"Even the monetary agreement in this proposal is a mirage," said RobinÂson. "Merchants wonâ€™t get these funds for years and will have paid more than that through increased swipe fees long before they see those funds."
The proposed settlement does alÂlow merchants to show consumers some of the costs of accepting credit cards, but only under very limited circumstances with strict overÂsight by Visa and MasterCard.
"Visa and MasterCard will continue to separately price-fix fees for thousands of their bank members. This means that banks wonâ€™t have to set their own prices and compete like other businesses throughout the U.S. economy. And Visa and MasÂterCard can continue to police how merchants price their products and stop them from showing consumers the cost consequences of using differÂent credit cards â€" unless merchants drop American Express," he said.
The proposed settlement also sets a dangerous path for the future of the payments landscape. Visa and MasterCard will be able to use their power in the market to prevent new entrants, like PayPal, from expanding their share of the market. And the proposed settleÂment allows Visa and MasterCard to continue to require that merchants acÂcept all of their credit cards no matter how expensive they make those cards. "NACS does not accept this proposed settlement and we reserve the right to fight it if other class representatives do accept it," said NACS President and CEO Henry Armour.
"There is plenty of time for merÂchants to make thoughtful decisions related to this proposed settlement. We hope and expect that, as they have the time to review it, many othÂer merchants including class repreÂsentatives will decide to reject this proposal," said Armour, adding, "We will keep our members well informed about new developments and their options related to this proposed setÂtlement and we strongly recommend that merchants keep their options open before signing any agreements with third parties to obtain settleÂment funds â€" particularly because this proposed settlement might not ultimately be the basis of a binding settlement."
"NACS has sought for years to bring competition and transparency to the credit card swipe fee market," added Robinson. "This proposed settlement does not come close to providing even a minimal level of the competiÂtion and transparency that merchants, their customers and the U.S. economy need."
By John Eichberger
The U.S. Environmental ProtecÂtion Agency (EPA) has approved E15 for use in 2001 and new veÂhicles, and it appears most of the hurdles standing between approval and introduction to the market have been reÂsolved. In fact, E15 has been registered as a fuel and is being sold today.
As you think about entering this new fuels market, knowing what needs to happen first will save you a lot of monÂey in the long run.
Be sure to have and understand the information for compliance with all apÂplicable rules and regulations that may apply to the sale of E15. Consider these things before offering this new fuel:
Compliance Surveys With EPA: ParÂties involved in the manufacture of E15 â€" including oxygenate blenders â€" must participate in a compliance survey apÂproved by EPA to ensure proper labeling of dispensers and proper ethanol conÂtent in gasoline sold. EPA has approved the RFG Survey Association to conduct the market compliance surveys.
E10 Compliance Included: Gasoline marketers who splashblend ethanol should take extra precautions to ensure their products, including E10, do not exÂceed the designated ethanol content. If E10 blends exceed 10% ethanol, retailers (and their supplier) could be subject to fines by EPA up to $37,500 per day. AdÂditionally, if E10 blends are found to have less than 8% ethanol (or more than 10% ethanol), they will not qualify for the 1.0 PSI Waiver provided in the Clean Air Act, as the waiver only applies to gasoline-ethanol blends that contain at least 9% ethanol and not more than 10% ethanol.
Misfueling Mitigation Plan: All manÂufacturers, distributors and retailers of E15 must submit to EPA a plan to preÂvent misfueling. A model plan has been approved by EPA and is available on its website. Retailers can reference the EPAâ€™s model plan to satisfy this requirement.
Pump Labeling: Gasoline pumps dispensing E15 must be labeled with the warning label seen here. The label must be placed on the upÂper two-thirds of each fuel dispenser where the consumer will see the label when selecting a fuel to purchase. For dispensers with one nozzle, the label must be placed above the button or othÂer control used for selecting E15, or in any other manner that clearly indicates which control is used to select E15.
For dispensers with multiple nozzles, the label must be placed in a location that will most likely be seen by the conÂsumer at the time he or she selects E15. Any retailer selling E15 who does not meet the above requirements may be subject to a fine of up to $37,500 per day. Additionally, the retailer may be vulnerable to claims of liability for any engine damage caused by consumer misfueling.
Compatibility: To store and dispense E15, retailers must make sure that fuelÂing equipment (i.e., underground storÂage tanks and dispensers) is listed by a nationally recognized testing lab (such as Underwriters Laboratories) as comÂpatible with that fuel.
Failure to use compatible infrastrucÂture exposes the retailer to claims of negligence per se, meaning that plainÂtiffs lawyers will simply need to demonÂstrate that the equipment is not listed by Underwriters Laboratories as compatÂible without having to show any actual negligence in order to prevail. Further, failure to use compatible equipment viÂolates local fire codes and federal OccuÂpational Safety and Health AdministraÂtion (OSHA) regulations, in addition to tank insurance agreements, many busiÂness loan agreements/bank covenants, and state tank fund policy requirements.
State Law: Approximately 37 states have some restrictions on E15, and 20 states prohibit its sale. Despite the EPAâ€™s actions outlined above, retailers living in these states may not legally sell E15 until these laws change.
Price Signage: Retailers who sell E15 must pay special attention to how they advertise their prices. Specifically, they must clearly distinguish the price for E15 from a comparable E10 price. FailÂure to do so could leave them vulnerable to claims of false or deceptive practices.
The introduction of new fuels can be a boon for your business and deliver positive public relations for your store. However, it is critical that you enter these new market opportunities in a compliant manner to avoid unintended consequences. A more extensive verÂsion of this guidance is available at nacsonline.com/compliance.
If you have any questions, conÂtact NACS Vice President of GovernÂment Relations John Eichberger.
By Corey Fitze
President Obama has signed a two-year transportation funding bill, ensuring that NACS-supported language clarifying the regulatory responsibilities for all tobacco retailers is now law.
Effective immediately, all retailers that possess an RYO machine that generates cigarettes sold to consumers will be treated as a tobacco manufacturer. These retailers are now required to remit all applicable federal and state excise taxes, use fire-safe tubes and register with the U.S. Food and Drug Administration. Satisfying these regulatory requirements is unfeasible for some retailers, who have begun ceasing operations. For example, RYO manufacturer, Quick Draw Machine, states on their webpage:
"We cannot monitor when your machine is used, and will not refund any past, current, or future reload fees you have made. You maintain a contractual obligation to comply with all federal, state, and local, laws in conjunction with the operating of the QuickDraw Express. We will not be buying back any machines or accepting any returns on parts. After SAM Manufacturing receives notice of enactment of the Highway Bill, SAM Manufacturing will not process any requests for reloads."
RYO Filling Station posted a similar notification on its website, which has since been taken down.
In grassroots, numbers count. This recent victory was made possible by your support and outreach to members of Congress about the significance of this issue to our industry. In just two months, nearly 1,200 individuals sent more than 1,300 letters to Capitol Hill asking 204 House members to support the RYO amendment. Of these 1,200 individuals, 93% engaged in the grassroots process for the first time through the NACS website: nacsonline.com/grassroots.
If you have any questions about the new law, contact Corey Fitze, NACS director of government relations.
By Carin Nersesian
All eyes were on the U.S. Supreme Court on June 28 and its highly anticipated ruling on President Obamaâ€™s signature legislation, the Patient Protection and Affordable Care Act (ACA). In general, the nationâ€™s high court kept the law mostly intact and upheld two significant provisions for our industry: the individual mandate and the menu-labeling provision for chain restaurants and retail food establishments.
The Court upheld the lawâ€™s individual mandate under Congressâ€™s taxing power, which was unexpected but still considered a possibility. On the first day of the ACA arguments before the U.S. Supreme Court, Solicitor General Donald Verrilli agreed with Justice Samuel Alitoâ€™s characterization of the governmentâ€™s position: "Today, you are arguing that the penalty [the individual mandate] is not a tax [for purposes of the Anti-Injunction Act, which prohibits challenges to tax statutes before the tax is paid]. Tomorrow, you are going to be back and you will be arguing that the penalty is a tax" that may be imposed by Congress under its tax and spending powers under the U.S. Constitution.
The Court agreed and now Congress can determine what a tax is for purposes of that law. However, itâ€™s up to the Supreme Court to determine what amounts to a "tax" under the Constitutionâ€™s taxing power. The Supreme Courtâ€™s decision could have an interesting effect on the governmentâ€™s tax authority because of the ACAâ€™s novel use of taxing as a disincentive rather than an incentive. Congress usually uses its taxing authority to encourage behaviors, such as home ownership, charitable giving, employment and so on. In this case, however, the taxing authority is being used to punish a behavior (for example, an individual who chooses not to purchase health insurance). Under that rationale, Congress could advance almost any activity through a tax.
Countering that possibility is the practical reality of enforcement. To borrow a theme from the Supreme Courtâ€™s oral arguments: How would the government enforce a tax on people who donâ€™t eat their broccoli?
The U.S. House of Representatives once again voted to fully repeal the health-care law on July 11, but the vote was viewed largely as symbolic because the Democrat-controlled Senate supports the law.
Republicans will undoubtedly use this rallying cry of taxes in the November elections. Conservative groups such as Americans for Prosperity, meanwhile, are calling the Supreme Courtâ€™s ruling as "one of the biggest tax increases in history."
Although the Supreme Courtâ€™s decision settles the constitutional questions many questions must still be resolved through rule making at the federal level and through state legislative and regulatory action. These issues could provide opportunities for some significant re-thinking of the law in a number of areas, including these issues that affect the convenience store industry:
- Automatic Enrollment: Department of Labor rules will require new hires to be enrolled in health plans automatically. The requirement wonâ€™t take effect until at least 2015. Nonetheless, employers need to start planning now to ensure compliance and to cover the additional costs.
- Employer Mandate: No rules have been issued explaining the requirements for compliance with the employer mandate, although requests for input have been released.
- State Health Benefit Exchanges: A handful of states have taken action to create exchanges. Additionally, the Department of Health and Human Services has issued guidance regarding federally facilitated exchanges and has held discussions on federal-state partnerships to get lagging states on board. Itâ€™s unclear what influence the Supreme Courtâ€™s ruling will have on the statesâ€™ decisions to move forward on exchanges, but it could very well put pressure on the Obama administration to delay implementation deadlines.
The health-care ruling is vast and complicated but we will help you navigate its twists and turns. Stay tuned for the November issue of NACS Magazine where we break down the health-care issue and its effect on you and your business.